Appeals court allows discrimination suit to move forward

• DOI: http://doi.org/10.1002/nba.30724
• Date: 01 February 2020
• Published date: 01 February 2020

FEBRUARY 2020 NONPROFIT BUSINESS ADVISOR

11

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DOI: 10.1002/nba

However, the trial court judge granted a summary

judgment in favor of the county.

On appeal, the plaintiff argued: (1) a male co-

worker in her division wasn’t disciplined for his errors

and (2) another male who formerly worked in that of-

ce made frequent errors without any consequences.

The appellate court said the plaintiff was required

to show she was qualied for the job and was treated

differently from similarly situated male workers.

The court agreed with the trial judge that the

plaintiff’s frequent errors and poor performance

demonstrated that she wasn’t qualified to per-

form her job at the time of her suspensions and

termination.

Assuming for the purpose of argument that she

was qualied, the court said the plaintiff had the

burden of demonstrating by a preponderance of

the evidence that the individuals who were treated

more favorably were similarly situated in all relevant

aspects. The panel explained that the test of whether

employees were “similarly situated” was rigorous,

and they must have had the same supervisor, been

subject to the same standards and engaged in the

same conduct.

EMPLOYER WINS ➔ The court ruled that the

male employee cited by the plaintiff wasn’t similarly

situated because (1) he had a different job classica-

tion and (2) there wasn’t any proof indicating either

the frequency of his errors or when they occurred.

It also ruled that the former employee mentioned

by the plaintiff wasn’t “similarly situated” because

he (1) didn’t work in her division, (2) was sub-

jected to different standards and (3) had different

supervisors.

The plaintiff also argued that she was disciplined

for making more than three data-entry errors in a

15-day period, and no male employee had been simi-

larly disciplined. However, the court said the record

contained no evidence that any male employee actu-

ally made more than three errors in a 15-day period.

The plaintiff also implied that the county’s

standards about errors had been unfair. However,

the panel said it wasn’t a “super-personnel depart-

ment” that reviewed the wisdom or fairness of busi-

ness judgments, unless they involved intentional

discrimination.

The appellate court afrmed the summary judg-

ment in favor of the county.

[Stevens v. County of Lancaster, Nebraska Court

of Appeals, No. A-18-003, 07/02/2019].

Discrimination

Appeals court allows discrimination suit

to move forward

The plaintiff was a Mexican-American who became

a cemetery attendant for the city of Idaho Falls in 2007.

While he worked in that job, the plaintiff allegedly

complained several times that his supervisor was sub-

jecting him to frequent racist comments. The plaintiff

also purportedly documented all of those remarks in

a black notebook and several red calendars for each

year from 2010 through 2015.

However, the city allegedly failed to do anything

about it.

The plaintiff received several promotions and

steady pay increases between 2007 and 2015.

But in November 2015, a female city employee

reported that the plaintiff had been sexually harass-

ing her. In addition, two male employees submitted

statements that conrmed some of her allegations.

The plaintiff was notied a week later that the

city was investigating and considering as grounds

for termination the charges of (1) sexual harassment,

intimidation and discrimination of a fellow employee

and (2) offensive or immoral activity while on duty.

The plaintiff was immediately called into the ofce,

presented with copies of the three employee state-

ments and red.

According to him, that was the rst time he heard

about the harassment charges.

The plaintiff led a suit claiming racial discrimi-

nation and unlawful retaliation. He alleged that the

accusations were false and submitted afdavits from

other employees in support of his position.

The city led a motion for summary judgment,

claiming its nondiscriminatory reason for ring the

plaintiff was the sexual harassment charge.

The plaintiff argued in opposition to the motion

that the sexual harassment charge had been carefully

orchestrated to justify getting rid of him.

He also contended that his white supervisor had

been treated more favorably in similar circumstances,

because (1) nothing was done in response to the fre-

quent complaints he and several other city employees

had made about the purported racist conduct, and yet

(2) he was quickly red after some employees claimed

sexual harassment.

The plaintiff also argued that his termination

was highly irregular because the city had (1) initially

refused to give a reason for ring him, (2) failed to